However, in its new guidance, the EC has indicated that it intends to use Article 22 to catch deals not otherwise subject to review in sectors like biotech, pharma and digital industry where innovation is a crucial parameter of competition and newly launched products can rapidly grow in significance. The Article 22 referral mechanism was initially designed to allow member states with no national merger control regimes to refer cases to the EC. This is the first use by the EC of its ‘Article 22’ powers, which allow it to bring in for review a merger not originally meeting the turnover thresholds under the EU Merger Regulation (EUMR), since it outlined new policy in this area in guidance issued in March 2021. Despite this, the EU has opened an in-depth investigation of the deal and, on 20 September, issued proceedings against Illumina for its decision to close the transaction while that investigation was ongoing (so-called ‘gun jumping’) while at the same time ordering hold separate measures. Grail has no revenues in Europe and, as a result, the acquisition was not originally caught by EU merger control rules – or indeed national merger control rules anywhere in the EU. The case represents a significant expansion of EU merger control. The DNA sequencing giant Illumina is locked in a battle with the European Commission (EC) over its $7.1 billion acquisition of Grail. Illumina/Grail: bio-tech companies in the firing line as the European Commission expands the limits of European merger control
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